Lawmakers want to hold President Trump accountable for his tariff power, or at least they’d like to make a show of doing so. That’s the reality behind two separate bills introduced in the Senate that both claim to give Congress back its authority on trade. Unfortunately, only one of them actually has teeth, and lawmakers should support it rather than its milquetoast rival.
Exploiting power that previous Congresses ceded to the executive, the president has used tariffs to wage trade wars against friends and rivals alike. Without needing Congress, that is, Trump has hiked taxes on American consumers.
The law allows these one-man tax hikes, but the whole arrangement clashes with the form of government our Constitution created. Article I, Section 8 explicitly hands the “power to lay and collect taxes [and] duties” as well as “to regulate commerce with foreign nations” to Congress. In its cowardice, Congress ceded some of this power to the executive in 1962, and so has done without its constitutional authority for more than half a century.
Trump, citing flimsy national security claims, enacted protectionist tariffs of 25 percent on steel imports and 10 percent on aluminum.
As with most of Trump’s transgressions, there is precedent. His predecessors did the same thing. But now there’s some appetite in Congress to take back this improperly and unwisely used power.
Sen. Pat Toomey, R-Pa., and Sen. Mark Warner, D-Va., have introduced legislation, the Bicameral Congressional Trade Authority Act of 2019, that would do that.
The legislation would require congressional approval of any tariffs requested by the president. The two chambers would have 60 days to review a tariff request before voting on a privileged motion not subject to filibuster.
Toomey’s bill would require that Congress approve all tariffs enacted under Section 232 during the past four years, meaning that every lawmaker would have to go on the record with their support or disapproval of Trump’s steel and aluminum tariffs.
The bill puts lawmakers in the driver seat, mandating their approval before the president can start a trade war or continue ones that have already begun. That’s how the nation’s founders intended things to be.
A second bill, introduced by Sens. Rob Portman, R-Ohio, Doug Jones, D-Ala., and Joni Ernst, R-Iowa, doesn’t actually give Congress any of its legitimate authority back. Instead, it simply authorizes Congress to undo with legislation tariffs imposed by the president. But it already has the power to do this, so the bill amounts to repetitious codification rather than innovation or restitution.
The bill is nearly pointless. We don’t need a law to declare that Congress may change the law. As Toomey and Warner’s bill demonstrates, that’s already well within their power, should they choose to use it.
Worse, Portman’s bill would write into law an exception for the steel and aluminum tariffs: “as amended by subsection (b), shall not apply to the presidential actions taken under that section on March 8, 2018, relating to the adjustment of import of steel and aluminum, or any subsequent actions (including proclamations, executive orders, or other executive acts) relating to those presidential actions.”
That hands Trump a free pass to keep doing exactly what he is doing. So much for checking his power.
There are good provisions in Portman’s bill. Like Toomey’s, it would shift power to determine the legitimacy of national security justifications to the Department of Defense, which makes much more sense than delegating that power to the Department of Commerce.
Lawmakers must not shy away from their responsibility simply because deference to the executive is easier than putting your name to a tax hike.
